of the bill will be found in the Appendix,' and it may be summarized as follows: Firstly, interests in land created by parol, and not put into writing by direction of the parties, were to have the effect of estates at will merely. An addition to this clause, in Lord Nottingham's handwriting, made a deed or note in writing necessary for the assignment, transfer, or surrender of these interests. It will be observed that this clause differed from the corresponding clause in the statute ultimately passed, in that there is no provision for signature by the parties or their agents. Secondly, in actions for debt and other personal actions on parol contracts, of which no memorandum in writing was taken by the direction of the parties, no more than a fixed amount of damages (the amount is left blank in the draft) was to be recovered; but the clause was not to apply to contracts for goods sold or money lent, or to obligations to pay upon a quantum meruit, or upon a contract created by construction of law. Here again there is no provision as to signature by the parties. Thirdly, wills of lands made in time of sickness were to be void, unless the testator was, after the making thereof, seen abroad in some public place. No will of lands was to be revocable by parol, but only by some other will, codicil, or instrument in writing. Nothing was said about wills of chattels personal. Fourthly, declarations, creations or assignments of trust, other than trusts arising or resulting by operation of law, must be made in writing. Fifthly, trust estates were made liable to execution for the debts of the cestuique trust. Sixthly, trust estates in fee simple descending to the heir were to be liable to the debts of the deceased in the same way as legal estates.

(ii) On April 14, 1675, the House of Lords read a first time another "Act for prevention of Frauds and Perjuries." " It passed its second reading on the following day, and was committed.3 Lord Nottingham was not on the committee.* On the 19th, North, C.J., and Windham, J., were ordered to attend the committee. On May 10 it was reported with amendments, and ordered to be engrossed. On May 12 it was read a third time, and sent to the Commons. On May 26 it was read a first time by the Commons; but it was not committed, and, owing to a prorogation of Parliament, it dropped. This bill, when it was

1 App. I.; it is printed Penns. Law Rev. lxi 285-287; and the points in which it differed from the statute ultimately passed are summarized, ibid 289-290.

* Journals of the House of Lords xii 656. Ibid 659.

4 Ibid; Penns. Law Rev. lxi 291.

Journals of the House of Lords xii 662.

"Ibid 686.

7 Ibid 689; Journals of the House of Commons ix 335.

• Ibid 345.

9 Penns. Law Rev. Ixi 309.

introduced, was the bill of 1673 as amended by Lord Nottingham. It was the amendments and additions made to it in committee that caused this bill to assume substantially the shape of our present statute of Frauds. The amendments were made in the committee to which, as we have seen, North, C.J., and Windham, J., had been added; and many were suggested by North. The additions were chiefly due to North, C.J., and Sir Leoline Jenkins. To North was due the clauses as to the estate pur autre vie ;* as to the time from which a judgment bound the lands of the person against whom it was given, and as to the binding effect of judgments upon lands in the hands of bona fide purchasers for value; as to the time from which writs of execution bound the goods of the person against whom the writs were sued forth; as to contracts for the sale of goods; as to the enrolment of recognizances; and the proviso to the clause making trust estates assets by descent. To Sir Leoline Jenkins was due the raw material for the clauses as to nuncupative wills of personalty, and as to the probate of such wills.10 The clause declaring that the statute of Distribution was not to apply to the husband who took administration to his wife's estate, seems to have been added by the committee. A copy of the draft of the bill thus amended will be found in the Appendix."

(iii) On October 14, 1675, the House of Lords read for the first time a bill substantially similar to the last-mentioned bill, as amended by the committee.12 It was read a second time on November 12 and committed. 13 Edward Turner, the Chief Baron, and Littleton, B., were directed to assist the committee.14 The committee met twice; and the Chief Baron and Littleton, B.,

1 Penns. Law Rev. lxi 290.

"It was in the deliberations and meetings of this committee, which extended from April 17 to May 6, 1675, that the draft of the bill was wholly altered in structure and detail; and the bill as finally reported by this committee has in general the scope, and, with only some minor differences, the exact language of the statute,” ibid 291.

* See the minutes of the committee printed in Penns. Law Rev. lxi 291-296.

429 Charles II. c. 3 § 12.

29 Charles II. c. 3 § 16.

588 13, 14, 15.
78 17.
8 § 18.

§ 11; Mr. Hening has printed the clauses proposed by North with his amendments, which were incorporated by the committee in the bill, Penns. Law Rev. Ixi 297-300; and he has printed in facsimile the proviso to the clause making trust estates assets by descent, which was added to the drafts of 1675 and 1676, ibid 296 and n. 10, and 312-313.

10

1988 19-24; Mr. Hening prints the clauses as drawn by Jenkins, Penns. Law Rev. Ixi 300-301, and the same clauses as they emerged from the committee, ibid 301-303; for Jenkins see vol, i 555, 557, 566; some further account of him will be given in a succeeding volume; Jenkins' clauses are also printed in Ninth Rep. Hist. MSS. Com. App. 49.

11 App. I.

12 Journals of the House of Lords xiii 7; Penns. Law Rev. lxi 309, 310.

13 Journals of the House of Lords xiii 20; Penns. Law Rev. lxi 310.

14 lbid.

told it that they had "perused the bill and finde not a worde to be altered in it." The further progress of the bill was stopped by a prorogation.

(iv) On February 17, 1676-1677, the same bill was again introduced into the House of Lords and read a first time. It was read a second time on February 19; and North, C.J., Windham, Jones, and Scroggs, JJ., were ordered to assist the committee.3 On March 6 it was reported with amendments, and ordered to be engrossed. On March 7 it was read a third time and sent to the Commons." On the 13th it was read a first time by the Commons, and ordered to be read a second time in a full House." It was read a second time on April 2 and was sent to a large committee, to which all the lawyers in the House were added." On April 12 it was reported with amendments. On the same day all the amendments, except one to make the bill temporary, were agreed to, and it was read a third time, and sent to the Lords, The Lords agreed to the Commons' amendments on the same day,10 and it received the royal assent on April 16.11

8

The amendments made by the committee of the House of Lords were not important,12 and those made by the committee of the House of Commons were even less important. 13 It may be noted that the proviso to the clause making trust estates assets by descent was again drawn and put forward by North, C.J., and inserted in the bill.14

The conclusions as to the authorship of the statute to be

1 See extracts from the committee book of the House of Lords, Penns. Law Rev. lxi 310, 311; Hist. MSS. Com. 9th Rep. App. no. 291, p. 66.

12 They are summarized by the 9th Rep. of the Hist. MSS. Commission Pt. ii App. no 336 p. 69 as follows:-"These are to introduce the words 'not being copyhold or customary interest 'in § 3, and the words 'in or,' before 'concerning in § 4, to change and no other person' into 'or by some other person' in § 5, to introduce the words which lands and tenements rectories tythes rents and other hereditaments by force and virtue of such execution shall accordingly be held and enjoyed free and discharged from all incumbrances of such person or persons as shall be so seised or possessed in trust for ye person against whome such execution shall be sued' in § 10, and the words till fourteen days at the least' in § 20."

13 The committee records of the House of Commons perished in the fire which destroyed the Houses of Parliament, see Penns. Law Rev. lxi 313; but the 9th Rep. of the Hist MSS. Commission Pt. ii App. no. 336 p. 69 says, "As amended in the Lords' Committee it is identical with the Act 29 Car. 11 c. 3, except that the words, where the estate thereby bequeathed shall exceed the value of twenty pounds,' and 'or where he or she shall have been resident for the space of ten days or more next before the making of such will' in § 18 are wanting in the Draft, which moreover has three days' instead of 'six days' in § 19."

14 Penns. Law Rev. Ixi 312; it appears as § 11 of the statute.

3

drawn from this discussion substantiate the claims made by Lord Nottingham in Ash v. Abdy, and for North, C.J., by his brother.? Lord Nottingham is responsible for the original draft of §§ 1, 3, 6, 7, 8, 9, 10, though many of these clauses were subsequently altered in committee. North helped to draft §§ 2, 4, and 25, and he drafted §§ 5 and 11-18. But, though Nottingham and North are mainly responsible for the statute, they were helped by Jenkins, who supplied the raw material for §§ 19-24, and by the other judges and members of the committees of April 17 to May 6, 1675, and February 20 to March 6, 1676, who put into their present form §§ 2, 4, 6, 9, 10 and 25.6 Thus Nottingham's statement that the Act had had its first rise from him, but that it had afterwards received some additions and improvements from the judges and civilians," is substantially accurate; though it neither lays sufficient stress on the importance of these additions and improvements, nor gives us any hint of the facts that North's share in the authorship of the statute is at least equal to Nottingham's, and that many of the amendments, which gave the statute its present form, are due to him.

We must now turn to the contents of the statute.

(2) The contents of the statute.

The statute is stated to be passed, "for prevention of many fraudulent practices which are commonly endeavoured to be upheld by perjury and subornation of perjury"; and most of its clauses are concerned with carrying out this object, by making written or other adequate evidence necessary for certain transactions. The transactions thus required to be evidenced in a prescribed way are: (i) Certain conveyances of interests in land. Leases, estates, and interests in freehold, or terms of years, or any uncertain interests in land (other than leases not exceeding three years at a rent of two-thirds the full value) must be in writing,

(1678) 3 Swanst. 664," And I said that I had some reason to know the meaning of this law; for it had its first rise from me, who brought in the bill into the Lords' House, though it afterwards received some additions and improvements from the Judges and Civilians."

Lives of the Norths i 141, "He had a great hand in the Statute of Frauds and Perjuries, of which the Lord Nottingham said that every line was worth a subsidy. . . . For I find in some notes of his and hints of amendments in the law, every one of those points which were there taken care of "; but there seems to be no evidence for his statements that Hale had something to do with the preparation of the statute, and that it originated with North.

Ibid 314-316.

Ibid 314-316.

*Above 382 nn. 9 and 10.

3 Penns. Law Rev. Ixi 314, 315. 5 Ibid 316. In the Record Commission edition of the statutes § 13 includes §§ 13 and 14 of the ordinary editions; for convenience I have adopted the numbering of the §§ in the ordinary editions, though the numbering of the Record Commission edition is clearly more correct; in the preceding section I have followed the correct numbering of the Record Commission of the statutes.

signed by the parties. If they are not, they will have the force only of estates at will. Assignments and surrenders of such interests must also be in writing.1 (ii) Wills of real estate must be in writing signed by the testator, or by some other person in his presence and by his direction, and attested in his presence by three or four credible witnesses; and such wills were only to be revocable, either by another will or codicil executed in like manner; or by a writing signed by the testator in the presence of three or four witnesses declaring the will revoked; or by the destruction or obliteration of the document by the testator, or by some one else in his presence and by his directions and consent.2 The statute did not apply to the execution of wills of personal property if the estate was of the value of £30 or less, or if it was a will of a soldier on actual military service or of a mariner or seaman at sea. But, in other cases, a nuncupative will of personal property was not to be valid unless (a) it was proved by the oath of three witnesses who were present at its making, and were requested by the testator to bear witness to it; and (b) it was made during the last sickness of the deceased, and in the house in which he had been resident ten days before its making." Further, after a period of six months from the making of a nuncupative will, no testimony was to be received to prove it, unless such testimony had been committed to writing within six days of its making. No written will of personal estate was to be revoked or altered by words, or by a nuncupative will, unless the words were, in the lifetime of the testator, committed to writing, and proved by three witnesses to have been read to and allowed by the testator. (iii) Declarations or assignments of trust. Declarations or creations of trusts of lands or tenements must be "manifested and proved" by a writing signed by the party creating the trust, or by his will in writing. The same

1 29 Charles II. c. 3 §§ 1-3.

8

2 §§ 5, 6; for some of the reasons for the enactment of this clause see below 389-390, 394-395.

4 § 23.

3 § 19. § 19; there was an exception as to the last requirement, "where such person was surprised or taken sick being from his own home and died before he returned to the place of his or her dwelling"; for the reasons for the enactment of this clause, and its earlier interpretation see Real Property Commission, 4th Rep. App. 27.

§ 20; in order that the hasty grant of probate or letters of administration might not render nugatory the provisions of §§ 19 and 20, it was provided by § 20 that no such grant should be made till after fourteen days from the death; and that probate of a nuncupative will should never be granted till the widow or next of kin had been cited to see if they wished to contest the will.

7 § 22; ex abundanti cautela it was provided by § 24 that, subject to the foregoing provisions, nothing in the Act was to affect the jurisdiction of the ecclesiastical courts over the probate of wills.

§7; the applies to land of copyhold tenure, Acherley v. Acherley (1732) 1 Bro. P.C. 273; Withers v. Withers (1752) 1 Amb. 151; and to leases for years, Riddle v. Emerson (1682) 1 Vern. 108.

VOL. VI.-25